Exhibit 10.27
THIRD AMENDMENT TO OPTION AND
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
This THIRD AMENDMENT TO OPTION AND PURCHASE AGREEMENT AND ESCROW
INSTRUCTIONS ("Amendment") is made and effective as of June 21, 2002, by and
between OTAY LAND COMPANY, LLC, a Delaware limited liability company ("Owner"),
and LAKES KEAN ARGOVITZ RESORTS-CALIFORNIA, LLC, a Delaware limited liability
company ("Optionee"), with reference to the facts set forth below.
RECITALS
A. Owner and Optionee entered into an Option and Purchase Agreement and
Escrow Instructions dated as of October 18, 1999, as amended by the First
Amendment to Option and Purchase Agreement and Escrow Instructions dated as of
December 8, 1999 ("First Amendment"), and by the Second Amendment to Option and
Purchase Agreement and Escrow Instructions dated as of December 14, 1999
("Second Amendment") (collectively, the "Option Agreement"), with respect to
approximately eighty six (86) acres located in the County of San Diego,
California as more particularly described in the Option Agreement.
B. The parties desire to amend the Option Agreement on the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the recitals set forth above, the
mutual agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as set forth below.
1. Defined Terms. All terms with initial capital letters used herein but
not otherwise defined shall have the respective meanings set forth in the Option
Agreement.
2. Road Alignment. Owner and Optionee agree that the Road Alignment shall
be in the location delineated on Final Exhibit "A-1" attached hereto and
incorporated herein ("Easement Area"). The legal description of the Easement
Area is set forth on Exhibit "A-2" attached hereto and incorporated herein.
Optionee shall have no further right to relocate the Easement Area or the Road
Alignment. Exhibit "A-1" to the Agreement is hereby deleted and replaced with
Final Exhibit "A-1" attached hereto. Owner will not reserve an easement over the
former location of the Road Alignment described in the First Amendment. The
Easement Area also includes land adjacent to the Property within the area of the
proposed widening of the street known as Melody Lane that is located along the
northerly boundary of the Property and is owned by Optionee.
3. Use of Easement Area. Section 2 of the First Amendment is hereby deleted
in its entirety. In consideration of Owner's agreement set forth below to give
Optionee additional rights to use the Easement Area and for additional costs and
expenses incurred by Owner in connection
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therewith, Optionee agrees to pay Owner in Cash upon the Close of Escrow, in
addition to the Purchase Price, the sum of One Hundred Eighty Five Thousand
Dollars ($185,000). The parties agree as follows:
a. Reservation of Easements. Sections 4.2.3 and 4.3.2 of the Option
Agreement are hereby deleted in their entirety and are removed as conditions
precedent to the parties' obligations to close Escrow. Upon the Close of Escrow,
Owner will reserve in the Grant Deed an easement for road and related purposes
over the portion of the Easement Area within the Property (the "Access Road").
In addition, upon the Close of Escrow, Optionee will grant to Owner an easement
for road and related purposes over the portion of the Easement Area owned by
Optionee (i.e., the portion of the Easement Area located within the proposed
expansion of Melody Lane and adjacent to the Property) pursuant to a Grant of
Easement in the form of Attachment "1" attached hereto and incorporated herein.
If the County or Caltrans requires Optionee to provide the County or Caltrans
with easements for public road purposes over some or all of Melody Lane and
State Highway 94, then Owner agrees to reasonably cooperate with any reasonable
requirements of the County or Caltrans so long as Melody Lane is a public road
available for public use. Such easements will be exclusive except as follows,
subject to the terms and conditions hereof, and provided that, if the roads
within the Easement Area become public road(s), such easements shall be
exclusive except to the extent that the County of San Diego allows other uses:
(i) Optionee may construct two (2) or four (4) of the planned four (4)
lanes of the roads proposed within the Easement Area from Melody Lane to the
turn off to Optionee's proposed casino facility ("Optionee's Road Work"),
provided that Optionee gives Owner prior written notice of its election to do so
at least six (6) months prior to commencement of Optionee's Road Work
("Optionee's Notice"). Optionee's Notice will specify the Optionee's Road Work
that Optionee will construct and the date Optionee will commence such work. Upon
delivery of Optionee's Notice to Owner, Optionee shall be obligated to construct
such Optionee's Road Work. The location of Optionee's Road Work is generally
depicted in Attachment "2" attached hereto and incorporated herein. Optionee
shall construct Optionee's Road Work substantially in accordance with County
requirements and specifications and the plans and specifications therefor
approved by Owner as required below, in a good and workmanlike manner and so as
not to delay Owner's completion or use of the other portions of the Easement
Area. During construction of Optionee's Road Work, the Optionee's Improvements
(as defined below), or any other improvements affecting the Easement Area by or
on behalf of Optionee, Optionee agrees to provide, at Optionee's sole cost and
expense, interim access through the Easement Area to Owner and its Users (as
defined below) at all times.| Optionee shall submit the plans and specifications
therefor to Owner at least thirty (30) days prior to commencement of Optionee's
Road Work and shall not commence such work until Owner has approved such plans
and specifications in writing, which approval will not be unreasonably withheld
or delayed, all subject to Section 3(a)(v) below;
(ii) until Owner delivers a Termination Notice (as defined below),
Optionee may use the Easement Area to install and maintain Optionee's
Improvements (as defined below). "Optionee's
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Improvements" will be limited to construction of utilities (both above and below
ground), flood control and drainage facilities, and road improvements to provide
access to and from the Easement Area for Optionee and its and its invitees,
successors and assigns ("Users"), all to support and facilitate the construction
and operation of the proposed casino and related facilities and other tribal
facilities. Optionee shall construct Optionee's Improvements substantially in
accordance with County requirements, the plans and specifications therefor
approved by Owner as required below and specifications and in a good and
workmanlike manner. Optionee shall submit the plans and specifications therefor
to Owner at least thirty (30) days prior to commencement of Optionee's
Improvements and shall not commence such work until Owner has approved such
plans and specifications in writing, which approval will not be unreasonably
withheld or delayed, all subject to Section 3(a)(v) below. Owner may, at any
time after August 1, 2002, in its sole, absolute and arbitrary discretion, give
notice to Optionee ("Termination Notice") to remove all of the Optionee's
Improvements within the Easement Area that Owner determines, in its reasonable
discretion, may adversely affect the construction or use of the Easement Area by
Owner and its Users. No later than twelve (12) months after the date of Owner's
Termination Notice, Optionee must remove all such Optionee's Improvements and
make all repairs necessary to return the Easement Area to substantially the same
condition as existed on the Closing Date (other than the Optionee's Road Work
and any of Optionee's Improvements that Owner does not require Optionee to
remove). If Optionee does not timely complete such removal and repairs, then, in
addition to all other remedies, Owner may take any and all actions as are
necessary to complete such removal and repairs, in which case Optionee will
reimburse Owner for its costs and expenses to complete such removal and repairs
together with an administrative fee equal to twenty percent (20%) of such costs
and expenses. Owner will reasonably cooperate with Optionee to allow Optionee to
construct and maintain within the Easement Area improvements to replace the
Optionee's Improvements required to be removed, provided that Owner determines,
in its reasonable discretion, that such replacement improvements will not
adversely affect the construction or use of the Easement Area by Owner and its
Users and that Optionee complies with the terms and conditions of this Section
3(a)(ii) relating to the design and construction of such improvements;
(iii) during construction of the roads and related improvements by or
on behalf of Owner, Owner agrees to reasonably cooperate with Optionee to
provide interim access through the Easement Area to Optionee and its Users. The
parties acknowledge that providing interim access is likely to increase the cost
and extend the schedule for completing construction of the roads and related
improvements by Owner. Accordingly, Optionee will be solely responsible for any
additional costs and expenses incurred in connection with providing such interim
access, including a twenty percent (20%) fee for Owner's administration and
overhead ("Interim Access Costs"). Optionee agrees to pay Owner in advance for
all Interim Access Costs within twenty (20) days after delivery of a written
statement to Optionee setting forth such additional costs and expenses and
providing reasonable evidence thereof. If Optionee fails to make timely payment
to Owner, in addition to all other remedies, Owner will have no obligation to
provide such interim access;
(iv) after construction of the roads within the Easement Area, by
either or both parties, Optionee and its Users shall have the right to use the
roads for vehicular ingress and egress
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to the remainder of the Property. If, as a result of the use or planned use of
the Access Road, Melody Lane and/or Xxxxxxx Valley Road by Optionee and/or its
Users, the County or any other Governmental Agency requires, at any time, any
additional onsite or offsite improvements ("Additional Improvements") as a
condition to development of Owner's property within the project commonly known
as "Otay Ranch," then Optionee will be solely responsible for the cost of such
Additional Improvements. The scope of any Additional Improvements will be based
on the allocated pro-rata or "fair share" of the use that is attributed to
Optionee and its Users as determined by the applicable traffic study adopted by
the County or such other Governmental Agency. In addition, if any additional
land is required to use or construct the Additional Improvements, Optionee will
grant easements to Owner over such additional land for the purposes, and subject
to terms and conditions, substantially the same as set forth herein. Optionee
shall pay Owner in advance for all costs and expenses related to such Additional
Improvements, including a twenty percent (20%) fee for Owner's administration
and overhead, within twenty (20) days after delivery of a written statement to
Optionee setting forth such additional costs and expenses and providing
reasonable evidence thereof. If Optionee fails to make such payment to Owner, in
addition to all other remedies, Owner will have no obligation to allow Optionee
and its Users to use the roads pursuant to this Section 3(a)(iv); and
(v) If, within thirty (30) days after Optionee has provided to Owner
for its approval the plans and specifications for the Optionee's Road Work,
Optionee's Improvements, replacement improvements, or any similar work that is
required to be approved by Owner, Owner does not respond to such request, and
Optionee delivers a second notice, the plans and specifications submitted to
Owner shall be deemed approved unless disapproved by Owner within five (5)
Business Days after receipt of such second notice, but such deemed approval
shall only occur if such second notice includes the following statement in bold
letters: OWNER IS REQUIRED PURSUANT TO THE TERMS OF THE OPTION AND PURCHASE
AGREEMENT AND ESCROW INSTRUCTIONS TO REVIEW THE ENCLOSED DOCUMENTS WITHIN FIVE
(5) BUSINESS DAYS AND FAILURE TO PROVIDE NOTICE OF APPROVAL OR DISAPPROVAL
WITHIN SUCH PERIOD SHALL CONSTITUTE NOTICE OF APPROVAL. Any plans and
specifications that are revised and resubmitted to Owner under such provisions
will be deemed approved unless disapproved by Owner within ten (10) Business
Days following its receipt if Builder delivers a written notice to Owner at the
time such documents are resubmitted containing the following statement in bold
letters: OWNER IS REQUIRED PURSUANT TO THE TERMS OF THE OPTION AND PURCHASE
AGREEMENT AND ESCROW INSTRUCTIONS TO REVIEW THE ENCLOSED DOCUMENTS WITHIN TEN
(10) BUSINESS DAYS AND FAILURE TO PROVIDE NOTICE OF APPROVAL OR DISAPPROVAL
WITHIN SUCH PERIOD SHALL CONSTITUTE NOTICE OF APPROVAL. The parties agree to
reasonably cooperate with each other to coordinate the scheduling and design of
construction of the roads within the Easement Area. Owner agrees to make
available to Optionee upon request any plans and specifications for such roads
prepared by or on behalf of Owner.
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b. Construction of Road Improvements. Owner will have the right to
construct the roads and related improvements within the Easement Area, at no
expense to Optionee (except as provided above), to County of San Diego
requirements and specifications and shall reserve in the Grant Deed an easement
for road, utility and related purposes, including the right to construct,
install, repair, maintain and replace the roads and related utilities, and will
reserve over portions of the Property adjacent to the Easement Area (i) a
temporary easement for access, grading and construction purposes and (ii) an
easement for slope maintenance.
c. Duration of Easements. The roads proposed within the Easement Area may
be required in connection with the development of Villages 14 and 16 within the
County of San Diego Otay Subregional Plan ("Villages 14 and 16"). When Villages
14 and 16 are fully developed, the easements described above will terminate to
the extent, but only to the extent, that any portion of the Easement Area is not
and will not be required in connection with the development of Villages 14 and
16 or any of the governmental approvals or entitlements relating thereto. Upon
Optionee's request, Owner agrees to execute any documents reasonably necessary
to terminate any such portion of the Easement Area, if applicable.
d. Indian Reservation Road System. If the County or any other Governmental
Agency refuses to accept an easement interest in the Easement Area, disapproves
of the alignment of the Easement Area or otherwise refuses to accept the
Easement Area in connection with the development of Villages 14 and 16, then, at
Owner's request, Optionee shall cause the Tribe (as defined below) to use
reasonable efforts to cause the United States Bureau of Indian Affairs or other
agencies of the federal government to have the Easement Area and the roads
proposed to be constructed within the Easement Area included as part of the
Indian Reservation Road System pursuant to applicable federal law and maintained
as a federal highway open to the public.
e. Title Insurance. As a condition precedent to the Close of Escrow in
favor of Owner, the Title Company shall be committed to issue to Owner, at
Owner's expense, an ALTA Standard Title Policy (the "Easement Title Policy") or,
if requested by Owner, an ALTA Extended Title Policy, with liability in an
amount reasonably required by Owner, insuring Owner's easement interest in the
Easement Area subject only to the exceptions described in Subsections (a), (b),
(c) and (d) of Section 4.2.2. Owner agrees that its receipt of the Easement
Title Policy will fully satisfy any express or implied warranty by Optionee as
to the condition of title to the Easement(s), and, if there are any title
exceptions or defects, including liens, encumbrances, covenants, conditions,
reservations, restrictions, rights-of-way or easements, which constitute a
defect in title, Owner shall look solely to the remedies available under the
Easement Title Policy, and Optionee shall have no responsibility or liability
therefor. If Owner requests an ALTA Extended Title Policy, Owner shall be solely
responsible for satisfying all conditions, at its expense, to the issuance of
the ALTA Extended Title Policy, including obtaining any necessary survey (or
relying upon any survey prepared by Optionee) and for paying for this policy. In
addition, Owner's election to obtain an ALTA Extended Title Policy shall in no
way delay the Closing Date. If, for any reason, Title Company does not commit to
issue to Owner an ALTA Extended Title Policy on the Closing Date,
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then this Section and shall be deemed satisfied so long as Title Company is
committed to issue to Owner an Easement Title Policy (i.e., the ALTA Standard
Title Policy.)
4. Grant Deed. The Grant Deed attached to the Agreement as Exhibit "B" is
hereby deleted and replaced with the Grant Deed attached hereto as Exhibit "B"
and incorporated herein.
5. Additional Conditions to the Close of Escrow. As conditions precedent to
the Close of Escrow in favor of Owner, which conditions may only be waived by
Owner, (i) the Jamul Indian Village ("Tribe") will acknowledge and agree that it
will be bound by the terms of the Agreement, including, without limitation, the
obligations of Optionee relating to Easement Area, the obligations under Section
5.8 of the Agreement (as amended hereby) and the obligation to arbitrate any
Disputes (as defined below), if the Tribe acquires title to the Property or any
portion thereof, whether directly, through a subsidiary or related entity,
through a trust established pursuant to guidelines of the United States Bureau
of Indian Affairs or otherwise; (ii) the Tribe executes and delivers to Owner
all documents necessary for the Tribe to waive its rights of sovereign immunity
with respect to the obligations under the Agreement, including, without
limitation, the obligations relating to Easement Area, the obligations under
Section 5.8 of the Agreement (as amended hereby) and the obligation to arbitrate
any Disputes, which shall be in form and substance reasonably satisfactory to
Owner, (iii) the Tribe consents in writing to the dispute resolution provision
contained in this Amendment and to the jurisdiction of the federal courts
located in San Diego County, California for the resolution of all Disputes and
(iv) legal counsel to the Tribe issues an opinion letter addressed to Owner
stating that the Tribe's assumption of the obligations under the Agreement,
limited waiver of sovereign immunity and consent described in clause (iii) above
are duly authorized, enforceable in accordance with their terms and irrevocable,
which legal opinion shall be reasonably acceptable to Owner.
6. Right to Approve Development, Border Line Easements and Agreement.
Section 5.8 of the Agreement is deleted in its entirety and replaced with the
following:
5.8. Right to Approve Development, Border Line Easements and Restriction.
Owner will retain certain property located adjacent to the Property
("Adjacent Property"). Owner shall have the right to approve any
improvements Optionee proposes to construct within five hundred (500)
feet from the boundary line between the Property and the Adjacent
Property, which approval shall not be unreasonably withheld or
delayed. Without limiting the foregoing, in no event will Optionee
cause or allow, or prepare or cause to be prepared any plans for, any
facilities involving sewage treatment or any leaching of sewage or
other wastes within five hundred (500) feet of the boundary line
between the Property and the Adjacent Property. In addition, Owner
will reserve in the Grant Deed an easement for road, utility and other
purposes that will provide that no improvements, structures, or
facilities (including, without limitation, any facilities involving
sewage treatment, any xxxxx fields or any leaching of
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sewage or other wastes) may be constructed or maintained within five
hundred (500) feet from the boundary line between the Property and the
Adjacent Property. Optionee acknowledges that Owner intends to improve
all or part of the Adjacent Property with estate homes with an
aggregate density not greater than five (5) homes per acre or more,
which may be a gated community with private streets, and Optionee
hereby approves of any such improvements on the Adjacent Property.
Optionee agrees not to in any way, directly or indirectly, object to,
protest, content or attempt to impose any conditions upon development
of any property currently owned by Owner. Owner acknowledges that
Optionee intends to improve a portion of the Property with a gambling
casino, parking and related facilities. Except as otherwise provided
in this Agreement, Owner agrees not to, directly or indirectly, object
to, protest, contest or attempt to impose any conditions upon the
development of such casino and related facilities. The obligations of
Owner and Optionee under this Section shall survive the Close of
Escrow and any termination of the Covenant.
7. Covenant. Exhibit "F" to the Agreement is hereby deleted and replaced
with the Covenant ("Covenant") in the form of Exhibit "F" attached hereto and
incorporated herein. Upon the Close of Escrow, the Covenant, executed and
acknowledged by Owner and Optionee, shall be recorded against the Property. Upon
the conveyance of the Property to a trust established by the United States
Bureau of Indian Affairs for the benefit of the Tribe ("Trust") and upon receipt
of an updated resolution acceptable to Owner in its reasonable discretion from
the Tribe regarding the matters set forth in Section 5 above, the Covenant will
terminate as a recorded document; provided, however, that Optionee and the Tribe
shall continue to be bound by the covenants, restrictions and easements
described in the Covenant, the Grant Deed and Section 5.8 of the Agreement (as
amended hereby) notwithstanding such termination and the Tribe agrees that it
will impose such covenants upon any future owners of the Property in a manner
that is binding on successors and assigns and is reasonably acceptable to Owner
prior to any direct or indirect transfer of the Property by the Tribe or the
Trust. Owner will execute any documents reasonably requested by Optionee to
effect such termination of the Covenant.
8. Notices. Section 13.13 of the Agreement is hereby amended to change the
addresses for notices to Optionee as follows:
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To Optionee at its business office
office:
Lakes Kean Argovitz Resorts-California, LLC
c/o Lakes Gaming, Inc.
000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000 (general)
(000) 000-0000 (direct)
With a copy to:
Kean Argovitz Resorts
00000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
With a copy to:
Kean Argovitz Resorts
0000 Xxxx Xxxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attn: Xxxxx Xxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxx, APC
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No. (000) 000-0000
9. No Third Party Beneficiaries. This Amendment and the Agreement are
solely for the benefit of Owner and Optionee and only Owner, Optionee, Owner's
Indemnitees and their respective permitted successors and assigns will have any
rights to enforce this Amendment and/or the Agreement.
10. Arbitration of Disputes. All claims and/or disputes arising from or in
any way relating to the Agreement or any document executed in connection
therewith that are initiated after the Close of Escrow ("Disputes") shall be
resolved by binding arbitration proceedings administered by the San Diego office
of JAMS or its successor pursuant to the provisions set forth below. The term
"Dispute" is used in the broadest and most inclusive sense and shall include,
without limitation, any disagreement, claim, cause of action, or controversy
between the parties, whether based on
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contract, tort or statute, arising from or relating to the Agreement or any
document executed in connection therewith, and/or the transactions contemplated
thereby, including, but not limited to, any dispute regarding the
enforceability, interpretation, scope, formation, validity, performance or
breach of the Agreement or any part thereof.
a. Initiation of Claim: Any party to the Agreement may initiate arbitration
proceedings by submitting a written demand for arbitration to the other party,
with a copy served on JAMS, which demand shall identify the Dispute(s). The
recipient of a claim shall have fifteen (15) days to serve a written response
setting forth any affirmative defenses and/or any additional claims or
counter-claims the responding party wishes to assert, with a copy served on JAMS
and the other party hereto.
b. Arbitration Rules: The arbitration proceedings shall be conducted
pursuant to the JAMS Comprehensive Arbitration Rules in effect on the date the
demand is made except to the extent that those rules are inconsistent with rules
and/or procedures expressly set forth herein.
x. Xxxxxx of the Arbitrator and Scope of Relief: The arbitrator shall have
the power to resolve any Disputes between the parties. This power shall include
the power to award monetary damages and sanctions, issue injunctions and order
preliminary or provisional relief prior to the granting of a final award.
Notwithstanding the foregoing, a party may seek injunctive relief in the United
States District Court, Southern District of California, if such party reasonably
anticipates that such relief would not be timely available in arbitration
proceedings.
d. Selection of Arbitrators: The arbitration proceedings shall be conducted
by a single arbitrator who is a retired judge with experience in hearing real
estate disputes. The arbitrator shall be chosen in accordance with the
procedures set forth in the JAMS Comprehensive Arbitration Rules with the
following exceptions or modifications: JAMS will provide a list of seven (7)
arbitrator candidates, instead of five (5); the candidates must be able to meet
the schedule set forth herein; and the claimants and respondents may each strike
a total of three (3) names from the list of arbitrator candidates.
e. Jurisdiction and Venue. All arbitration proceedings hereunder shall be
conducted in San Diego County, California in a location either agreed upon by
the parties or designated by the arbitrator selected by the parties. The
arbitration award and/or a judgment upon the award shall be entered in the
United States District Court for the Southern District of California. The
parties hereto expressly consent to the jurisdiction of that District Court for
purposes of enforcement of any such award or judgment and any other matters that
are allowed to be brought hereunder before such court.
f. Conduct of Hearings. In any hearing on the merits of the Disputes or a
party's request for preliminary or provisional relief, the Federal Rules of
Evidence shall be applied.
g. Confidentiality. All testimony, evidence and arguments disclosed in any
hearing during these arbitration proceedings shall be kept confidential and,
shall not be disclosed to anyone
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other than to JAMS and the parties to the arbitration. Likewise, any documents,
information or evidence exchanged or disclosed by the parties as part of the
arbitration proceedings, whether before, during or after the arbitration
hearing, shall be treated as confidential and shall not be disclosed to anyone
other than JAMS and the parties to the arbitration.
h. Arbitrator's Fees. Each party to the arbitration shall pay fifty percent
(50%) of the arbitrator's fees. However, the prevailing party in the arbitration
shall be entitled to recover from the non-prevailing party, in addition to all
other recoveries (including any recoveries under Section 13.8 of the Agreement),
the amount of the arbitrator's fees and all administrative fees relating to the
arbitration.
i. Discovery. Within thirty (30) days after service of the respondent's
response to the arbitration demand, or, if no response is made, within thirty
(30) days after expiration of the time for filing such a response, the parties
shall complete an exchange of all non-privileged documents and writings in their
possession or reasonable control that are relevant to the Disputes being
arbitrated. The parties shall, at the same time, exchange the names of the
individuals who they may call as witnesses (including expert witnesses) at the
arbitration hearing. The parties shall have a continuing obligation to update
and supplement the initial exchange of information with any such information
they subsequently obtain or discover, including any documents or reports that
may be introduced at the arbitration hearing. Each party may take a total of
three (3) depositions. All such depositions must be completed no later than
thirty (30) days after the initial document exchange. If any party believes that
additional discovery or production of documents is warranted, it may apply to
the arbitrator for any such additional discovery; provided, however, that any
such discovery must be completed no later than sixty (60) days after the initial
document exchange. If the arbitrator determines that the requesting party has a
reasonable need for the requested information or discovery and that the request
is not overly burdensome on the opposing party, the arbitrator may order the
information exchange or discovery; provided, however, that any such discovery
must be completed no later than sixty (60) days after the initial document
exchange. Documents that have not been exchanged, or witnesses and experts that
have not previously been identified at least fourteen (14) days prior to the
arbitration hearing, will not be considered by the arbitrator at the hearing
unless the parties consent. The arbitrator will have the power to resolve any
discovery disputes.
j. Schedule of Proceedings. The arbitration hearing shall be scheduled for
as soon as possible after the completion of discovery, but in no event will the
arbitration hearing commence later than one hundred twenty (120) days after
service of the initial demand for arbitration. The arbitration hearing must be
completed within ten (10) days after commencement of the arbitration hearing.
The arbitrator shall serve a written decision, which shall include the facts,
law and analysis on which the decision is based, within twenty-one (21) days
after the conclusion of the arbitration hearing.
k. Right to Appeal. Any party to the arbitration will have the right to
appeal the arbitrator's final decision or award. Interim or preliminary
decisions will not be appealable. If a party appeals, that party must provide
written notice to JAMS and each party to the arbitration of its
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intent to appeal not later than ten (10) days after the appealing party's
receipt of the arbitrator's decision. The notice must briefly state or summarize
the portions of the award being appealed and the grounds for appeal. The other
party may file a cross-appeal within ten (10) days of its receipt of the notice
of appeal, following the same notice and service requirements as for the appeal.
If an appeal is filed, the initial arbitrator's award shall not be entered as a
final judgment unless it is affirmed in its entirety. The appeal shall be heard
by a retired judge selected immediately upon service of the notice of appeal
pursuant to the same procedures used to select the initial arbitrator. In
reviewing the decision or award of the arbitrator, the arbitrator hearing the
appeal shall apply the same standards of review that would apply to the rulings
and issues on appeal if they were appealed from a United States District Court
judgment to the Ninth Circuit Court of Appeals. The arbitrator hearing the
appeal may not remand the dispute to the original arbitrator. If additional
findings are needed or additional evidence needs to be submitted, such matters
shall be heard by the arbitrator hearing the appeal. The record on appeal shall
consist of the reporter's transcript of the arbitration hearing(s) and any
documents or other evidence submitted to the initial arbitrator. A party may not
appeal if there is no reporter's transcript of the hearing(s). The appellant's
opening brief shall be due thirty (30) days after the notice of appeal is
served. The respondent's brief shall be due thirty (30) days after the
respondent receives a copy of the appellant's brief. The appellant has the
option of filing a reply brief within ten (10) days of its receipt of the
respondent's brief. The final decision of the arbitrator hearing the appeal
shall be the final arbitration award and shall be entered in the United States
District Court for the Southern District of California.
WAIVER OF LEGAL RIGHTS. BY INITIALING IN THE SPACE BELOW, THE PARTIES
ACKNOWLEDGE AND AGREE TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED OR
DESCRIBED IN THIS SECTION DECIDED BY ARBITRATION AS PROVIDED UNDER APPLICABLE
LAW AND THAT THEY ARE WAIVING ANY RIGHTS THEY MAY POSSESS TO HAVE THE DISPUTE
LITIGATED IN A COURT OR BY JURY TRIAL. THE PARTIES FURTHER ACKNOWLEDGE AND AGREE
THAT THEY ARE WAIVING THEIR JUDICIAL RIGHTS TO DISCOVERY EXCEPT TO THE EXTENT
SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN THIS SECTION. IF EITHER PARTY REFUSES
TO SUBMIT TO ARBITRATION AFTER EXECUTION OF THIS AMENDMENT AND INITIALING BELOW,
SUCH PARTY MAY BE COMPELLED TO PROCEED WITH ARBITRATION UNDER THE AUTHORITY OF
APPLICABLE LAW. EACH PARTY'S AGREEMENT TO THIS SECTION IS VOLUNTARY. THE PARTIES
HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT
OF THE MATTERS INCLUDED OR DESCRIBED IN THIS SECTION TO ARBITRATION.
----------------- -------------------
Owner's Initials Optionee's Initials
11
11. Miscellaneous. This Amendment may be executed in counterparts, each of
which, taken together, shall constitute one fully executed original. Facsimile
signatures will be binding and effective for all purposes. Except as expressly
modified by this Amendment, the Option Agreement shall remain in full force and
effect. The parties ratify and affirm all of their respective obligations under
the Agreement. The Agreement as amended constitutes the entire agreement between
the parties pertaining to the subject matter of the Agreement, and all prior and
contemporaneous agreements, representations, negotiations and understandings of
the parties, oral or written, are hereby superseded and are of no further force
or effect and shall not be used to interpret the Agreement or this Amendment.
The foregoing sentence shall not affect the validity of any instruments executed
by the parties in the form of the exhibits attached to this Amendment or the
Agreement. THIS AMENDMENT SHALL ONLY BE EFFECTIVE IF THE CLOSE OF ESCROW OCCURS
ON OR BEFORE JUNE 21, 2002.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date set forth above.
OWNER: OPTIONEE:
OTAY LAND COMPANY, LLC, a Delaware LAKES KEAN ARGOVITZ RESORTS-
limited liability company CALIFORNIA, LLC, a Delaware
limited liability company
By: By:
-------------------------------- -----------------------------
Name: R. Xxxxx Xxxxxxx, Vice President Name: -----------------------
Title: ----------------------
By:
-----------------------------
Name: -----------------------
Title: ----------------------
12
EXHIBIT LIST
Page
Exhibit "A-1" Depiction of Easement Area.................................1
Exhibit "A-2" Legal Description of Easement Area.........................1
Exhibit "B" Grant Deed.................................................6
Exhibit "F" Covenant.......................... ........................7
13
EXHIBIT "B"
GRANT DEED
RECORDING REQUESTED BY: )
)
CHICAGO TITLE COMPANY )
)
WHEN RECORDED MAIL TO: )
)
------------------------- )
------------------------- )
------------------------- )
------------------------- )
------------------------- )
_______________________________________________________________________________
Above Space for Recorder's Use
Tax Parcel Number
---------
GRANT DEED
DOCUMENTARY TRANSFER TAX TO BE BY SEPARATE STATEMENT PURSUANT TO
CALIFORNIA REVENUE AND TAXATION CODE SECTION 11932
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, OTAY
LAND COMPANY, LLC, a Delaware limited liability company,
hereby grants to LAKES KEAN ARGOVITZ RESORTS-CALIFORNIA, LLC, a Delaware limited
liability company, the following described real property (the "Property")
situated in the County of San Diego, State of California:
See Attachment "A" attached hereto and incorporated herein by this
reference.
RESERVING UNTO GRANTOR, its successors and assigns together with the right
to grant and transfer all or a portion of the same, as follows:
A. Easements on, over, under and across the portion of the Property
described on Attachment "A-1" attached hereto and incorporated herein ("Road and
Utilities Easement Area") for road, utilities and related purposes. Such
easements are appurtenant to, and for the benefit of, the real property owned by
Grantor described in Attachment "B" attached hereto and incorporated herein
("Grantor's Property"). Neither Grantee nor its successors and assigns shall at
any time construct or maintain within the Road and Utilities Easement Area any
structures, improvements and appurtenances thereto of every type and kind,
whether temporary or permanent, including but not
1
limited to, sewage treatment facilities, xxxxx fields or any other areas for
leaching of sewage or other wastes.
B. Easements on, over, under and across the portion of the Property
described on Attachment "A-2" attached hereto and incorporated herein ("Road
Easement Area") for (i) road purposes, including, without limitation, pedestrian
and vehicular ingress and egress, and (ii) the construction, installation,
repair, replacement and maintenance of road, slope and utility improvements,
including, without limitation, paving, medians, curbs, landscape improvements,
and facilities for electric, gas, telephone, water, sewer, drainage and other
utilities. Grantor also reserves on, over, under and across portions of the
Property adjacent to the Road Easement Area (i) a temporary easement for access,
grading and construction purposes and (ii) an easement for slope maintenance.
Such easements are appurtenant to, and for the benefit of, Grantor's Property.
Grantor reserves the right to allow public use of the Road Easement Area for
such purposes and/or to assign such easements, in whole or in part, to the
County of San Diego or another public or quasi-public agency. Grantor will have
the right to construct roads and related improvements within the Road Easement
Area, at no expense to Grantee (except as provided in, and subject to the terms
and conditions of, the Option Agreement [as defined below], which terms and
conditions are incorporated herein by reference) to County of San Diego
requirements and specifications. Such easements will be exclusive except as
expressly provided in, and subject to the terms and conditions of, the Option
Agreement, which terms and conditions are incorporated herein by reference.
During construction of the roads and related improvements, Grantor agrees
to reasonably cooperate with Grantee to provide interim access through the Road
Easement Area to the improvements that Grantee intends to develop on the
Property in accordance with the terms and conditions of the Option Agreement,
which terms and conditions are incorporated herein by reference.
The road proposed within the Road Easement Area may be required in
connection with the development of the portion of Grantor's Property within
Villages 14 and 16 within the County of San Diego Otay Subregional Plan
("Villages 14 and 16"). When Villages 14 and 16 are fully developed, the
easements described herein will terminate to the extent, but only to the extent,
that any portion of the Road Easement Area is not and will not be required in
connection with the development of Villages 14 and 16 or any of the governmental
approvals or entitlements relating thereto. Upon Grantee's request, Grantor
agrees to execute any documents reasonably necessary to terminate any such
portion of the Road Easement Area, if applicable.
If the County of San Diego or any other governmental agency refuses to
accept an easement interest in the Road Easement Area, disapproves of the
alignment of the Road Easement Area or otherwise refuses to accept the Road
Easement Area in connection with the development of Villages 14 and 16, then
Grantee shall cause the Jamul Indian Village to use reasonable efforts to cause
the United States Bureau of Indian Affairs or other agencies of the federal
government to have the Road Easement Area and the roads proposed to be
constructed within the Road Easement Area included
2
as part of the Indian Reservation Road System pursuant to applicable federal law
and maintained as a federal highway open to the public.
If any action, arbitration, judicial reference or other proceeding is
instituted between Grantor and Grantee in connection with this Grant Deed, the
losing party shall pay to the prevailing party a reasonable sum for attorneys'
and experts' fees and costs incurred in bringing or defending such action or
proceeding and/or enforcing any judgment granted therein, all of which shall be
deemed to have accrued upon the commencement of such action or proceeding and
shall be paid whether or not such action or proceeding is prosecuted to final
judgment. Any judgment or order entered in such action or proceeding shall
contain a specific provision providing for the recovery of attorneys' fees and
costs, separate from the judgment, incurred in enforcing such judgment. The
prevailing party shall be determined by the trier of fact based upon an
assessment of which party's major arguments or positions taken in the
proceedings could fairly be said to have prevailed over the other party's major
arguments or positions on major disputed issues. Attorneys' fees shall include,
without limitation, fees incurred in the following: (1) post-judgment motions;
(2) contempt proceedings; (3) garnishment, levy, and debtor and third party
examinations; (4) discovery; (5) any appeals; and (6) bankruptcy proceedings.
This provision is intended to be expressly severable from the other provisions
of this Grant Deed, is intended to survive any judgment and is not to be deemed
merged into the judgment.
All disputes arising from or relating to this Grant Deed shall be resolved
by arbitration in accordance with the terms and procedures set forth in the
Option and Purchase Agreement and Escrow Instructions dated as of October 18,
1999, as amended by the First Amendment to Option and Purchase Agreement and
Escrow Instructions dated as of December 8, 1999, the Second Amendment to Option
and Purchase Agreement and Escrow Instructions dated as of December 14, 1999,
and the Third Amendment to Option and Purchase Agreement and Escrow Instructions
dated as of June 21, 2002 (collectively, the "Option Agreement"), which terms
and procedures are incorporated herein by reference.
All of the provisions, agreements, covenants, conditions, easements,
restrictions and obligations contained in this Grant Deed shall be covenants
running with the land pursuant to applicable law, including, but not limited to
Section 1468 of the Civil Code of the State of California. It is expressly
agreed that each of the limitations, covenants, conditions, and restrictions
contained herein (i) is for the benefit of Grantor's Property and is a burden
upon the Property, (ii) attaches to and runs with the Property and Grantor's
Property, (iii) benefits each successor owner during its ownership of Grantor's
Property or any portion thereof, and (iv) is binding upon each successor owner
during its ownership of the Property or any portion thereof, and each owner
having any interest therein derived in any manner through any owner of the
Property or any portion thereof, whether by operation of law or any manner
whatsoever. Each person who now or in the future owns or acquires any right,
title or interest in or to the Property or any portion thereof shall be
conclusively deemed to have consented to and agreed to every limitation,
covenant, condition, and restriction contained herein, whether or not the
instrument conveying such interest refers to such limitations, covenants,
conditions, and restrictions. The personal obligation or each owner of the
Property will not be released by any
3
transfer of the Property subsequent to the date such obligation became due, but
such obligation will also run with the land and shall be binding upon any
successor owner. Each term, covenant, restriction and undertaking set forth
herein will remain in effect for a term of ninety-nine (99) years from the
recordation date hereto and will automatically be renewed for successive ten
(10) year periods unless Grantor elects by written notice to the other not to so
renew. However, the easements hereunder shall be perpetual.
The Property is further conveyed subject to:
1. Non-delinquent general, special and supplemental real property taxes and
assessments; and
2. Covenants, conditions, restrictions, easements, licenses, reservations,
rights, rights-of-way and other matters of record or discoverable by inspections
or surveys.
IN WITNESS WHEREOF, said company has caused its company name to be affixed
hereto and this instrument to be executed by its duly authorized officer.
Dated:
---------------------
OTAY LAND COMPANY, LLC, a Delaware
limited liability company
By:
--------------------------
Name:
---------------------------
Title:
---------------------------
4
STATE OF CALIFORNIA )
)ss.
COUNTY OF )
--------------------
On before me, personally appeared
--------------- -----------------
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name(s) are/is subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity, and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
WITNESS my hand and official seal.
Signature (SEAL)
------------------------
STATE OF CALIFORNIA )
)ss.
COUNTY OF )
--------------------
On before me, personally appeared
------------ --------------------
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name(s) are/is subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity, and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
WITNESS my hand and official seal.
Signature (SEAL)
-----------------------
5
ATTACH THE FOLLOWING EXHIBITS
ATTACHMENT "A" Legal Description of Property
ATTACHMENT "A-1" Legal Description of Road and Utility Easement Area
ATTACHMENT "A-2" Legal Description of Road Easement Area
ATTACHMENT "B" Legal Description of Grantor's Property
6
Exhibit "F"
RECORDING REQUESTED BY: )
WHEN RECORDED MAIL TO: )
)
XXXX, FORWARD, XXXXXXXX & SCRIPPS LLP )
000 Xxxx Xxxxxxxx, Xxxxx 0000 )
Xxx Xxxxx, XX 00000 )
Attn: Xxxxx X. Xxxxx, Esq. )
)
--------------------------------------------------------------------------------
Space above for recorder's use only
DECLARATION OF COVENANTS
This DECLARATION OF COVENANTS ("Declaration") is made and entered into this
as of June 21, 2002, by OTAY LAND COMPANY, LLC, a Delaware limited liability
company ("Otay"), and LAKES KEAN ARGOVITZ RESORTS-CALIFORNIA, LLC, a Delaware
limited liability company ("Lakes"),with reference to the facts set forth below.
RECITALS
A. Otay owns certain real property located in the County of San Diego,
State of California, more particularly described in Exhibit "A" attached hereto
and incorporated herein ("Otay Property").
B. Lakes owns certain real property located in the County of San Diego,
State of California, more particularly described in Exhibit "B" attached hereto
and incorporated herein ("Lakes Property"). Otay conveyed the Lakes Property to
Lakes pursuant to an Option and Purchase Agreement and Escrow Instructions
between Otay and Lakes ("Option Agreement").
C. The parties desire to impose covenants and conditions with respect to
the Lakes Property for the benefit of the Otay Property and the successor Owners
thereof which are hereby expressly declared to be binding and a burden upon the
Lakes Property and each portion thereof and shall run with the Lakes Property
and the Otay Property (collectively, the "Properties") and each portion located
thereof and inure to the benefit of Otay Property and the heirs, successors and
assigns of the Otay Property, and shall bind the heirs, successors and assigns
of the Lakes Property and any portion thereof and shall be covenants running
with the land and mutual equitable servitudes. The term "Owner" and "Owners" as
used herein shall refer collectively to Otay, Lakes and all successor fee title
owners to all or any portion of the Otay Property or the Lakes Property.
7
ARTICLE 1
RESTRICTIONS
1.1 The Owner(s) of the Otay Property shall have the right to approve any
improvements to be constructed within five hundred (500) feet of the boundary
line between the Lakes Property and the Otay Property, which approval shall not
be unreasonably withheld or delayed. Without limiting the foregoing, in no event
will the Owners of the Lakes Property cause or allow, or prepare or cause to be
prepared any plans for, any facilities involving sewage treatment, or any
leaching of sewage or other wastes, within five hundred (500) feet of the
boundary line between the Lakes Property and the Otay Property. Lakes
acknowledges that Otay intends to improve all or part of the Otay Property with
estate homes with an aggregate density not greater than five (5) homes per acre
or more and Lakes, for itself and for all future Owners of the Lakes Property,
hereby approves of any such improvements on the Otay Property and agrees that no
further approvals under this Declaration shall be required with respect to such
improvements on the Otay Property. Lakes, for itself and for all future Owners
of the Lakes Property, hereby agrees not to in any way, directly or indirectly,
object to, protest, content or attempt to impose any conditions upon development
of any property currently owned by Otay. Without limiting Owner's approval
rights under this Declaration, Otay acknowledges that Lakes intends to improve a
portion of the Lakes Property with a gambling casino, parking and related
facilities. Any Owner who does not deliver to the Owner of the Lakes Property
proposing such improvements written notice of disapproval specifying the reasons
for such disapproval within fifteen (15) days after delivery of the request for
approval, will be deemed to have approved the request.
ARTICLE II
REMEDIES
2.1 Legal Action Generally. If any Owner breaches any provision of this
Declaration, then any other Owner may institute legal action against the
defaulting Owner for specific performance, injunction, declaratory relief,
damages, or any other remedy provided by law or in equity. Exercise of one
remedy shall not be deemed to preclude exercise of other remedies for the same
default, and all remedies available to Owners may be exercised cumulatively.
2.2 Injunctive and Declaratory Relief. In the event of any violation or
threatened violation by any Owner, of any of the terms, covenants, conditions,
and restriction herein contained, in addition to any other remedies provided for
in this Declaration, any Owner shall have the right to enjoin such violation or
threatened violation and to bring an action for declaratory relief in a court of
competent jurisdiction.
8
ARTICLE III
MISCELLANEOUS
3.1 Binding Effect. Each Owner of the Lakes Property, by acceptance of the
deed to lease of or other conveyance of all or a portion of the Lakes Property
or interest therein, shall be deemed to covenant and agree to be personally
bound by this Declaration. All of the limitations, covenants, conditions, and
restrictions contained herein shall attach to and run with the Lakes Property,
and shall, except as otherwise set forth herein, benefit or be binding upon the
successors and assigns of the Owners of the Otay Property and any portion
thereof. This Declaration and all the terms, covenants and conditions herein
contained shall be enforceable as equitable servitudes in favor of Otay Property
and any portion thereof, shall create rights and obligations as provided herein
between the respective Owners and shall be covenants running with the land.
Every person who now or in the future owns or acquires any right, title or
interest in or to the Lakes Property or portion thereof shall be conclusively
deemed to have consented to and agreed to every covenant, restriction,
provision, condition and right contained in this Declaration, whether or not the
instrument conveying such interest refers to this Declaration. Any sum not paid,
or other obligation not performed when due, together with interest payable
hereunder, and all costs and attorneys' fees incurred in connection with
collection, shall be the personal obligation of the person or persons who was
the Owner at the time the payment or obligation became due. The personal
obligation shall not be released by any transfer of the Lakes Property
subsequent to the date such payment or obligation became due, but such
obligation shall run with the land and shall be binding upon any successor
Owner. If any Owner sells, transfers or assigns its entire interest in the Lakes
Property, it shall be released from its unaccrued obligations hereunder from and
after the date of such sale, transfer or assignment.
3.2 Attorneys' Fees. In the event of any action between the Owners hereto
for breach of or to enforce any provision or right hereunder, the non-prevailing
Owner(s) in such action shall pay to the prevailing Owner(s) all costs and
expenses expressly including, but not limited to, reasonable attorneys' fees
incurred by the prevailing Owner(s) in connection with such action.
3.3 Breach Shall Not Permit Termination. It is expressly agreed that no
breach of this Declaration shall entitle any Owner to cancel, rescind, or
otherwise terminate this Declaration, but such limitation shall not affect in
any manner any of the rights or remedies which the Owners may have by reason of
any breach of this Declaration.
3.4 Effect On Third Parties. The rights, privileges, or immunities
conferred hereunder are for the benefit of the Owners and not for any third
party.
3.5 No Partnership. Neither this Declaration nor any acts of the Owners
hereto shall be deemed or constructed by the parties hereto, or any of them, or
by any third person, to create the relationship of principal and agent, or of
partnership, or of joint venture, or of any association between any of the
Owners.
9
3.6 Modification. A modification, waiver, amendment, discharge, or change
of this Declaration shall be valid if, but only if, the same is in writing and
signed by all of the Owners. Any change, modification, amendment or rescission
which is made without the written consent of the Owners shall be null and void
and of no effect.
3.7 Severability. If any term, covenant, condition, provision, or agreement
contained herein is held to be invalid, void, or otherwise unenforceable, by any
court of competent jurisdiction, such holding shall in no way affect the
validity or enforceability of any other term, covenant, condition, provision, or
agreement contained herein.
3.8 Interpretation. This Declaration and the obligations of the Owners
hereunder shall be interpreted, construed, and enforced in accordance with the
laws of the State of California. All personal pronouns used in this Declaration,
whether used in the masculine, feminine, or neuter gender, shall include all
other genders; the singular shall include the plural and vice versa. Article and
section titles or captions contained herein are inserted as a matter of
convenience and for reference, and in no way define, limit, extend, or describe
the scope of this Declaration or any provisions hereof.
3.9 Not a Public Dedication. Nothing herein contained shall be deemed to be
a gift or dedication of any portion of the Property to the general public or for
the general public or for any public purpose whatsoever, it being the intention
of the Owners hereto that this Declaration shall be strictly limited to and for
the purposes herein expressed.
3.10 Entire Agreement. This Declaration and the Option Agreement contain
all the representations and the entire agreement between the Owners with respect
to the subject matter hereof. Any prior correspondence, memoranda or agreements
are superseded in total by this Declaration. The provisions of this Declaration
shall be construed as a whole according to their common meaning and not strictly
for or against any Owner.
3.11 Duration. This Declaration and each term, easement, covenant,
restriction and undertaking of this Declaration will remain in effect for a term
of ninety-nine (99) years from the recordation date hereto and will
automatically be renewed for successive ten (10) year periods unless an Owner
elects by written notice to the other not to so renew.
3.12 Waiver of Default. No waiver of any default by either Owner to this
Declaration shall be implied from any omission by the other Owner to take any
action in respect of such default if such default continues or is repeated. No
express written waiver of any default shall affect any default or cover any
period of time other than the default and period of time specified in such
express waiver. One or more written waivers of any default in the performance of
any term, provision or covenant contained in this Declaration shall not be
deemed to be a waiver of any subsequent default in the performance of the same
term, provision or covenant or any other term, provision or covenant contained
in this Declaration.
10
IN WITNESS WHEREOF, the parties have caused this Declaration to be executed
as of the date first above-written.
OTAY: LAKES:
OTAY LAND COMPANY, LLC, a LAKES KEAN ARGOVITZ RESORTS-
Delaware limited liability company CALIFORNIA, LLC, a Delaware limited
liability company
By: By:
---------------------------------- ------------------------------
Name: Name:
---------------------------------- ------------------------------
Title: Title:
--------------------------------- ------------------------------
[Signatures of two appropriate
officers or board resolution
required.]
11
STATE OF ____________ )
) ss:
COUNTY OF ____________ )
On ____________, 20__, before me, _________________________,
personally appeared
______________________________________________________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
WITNESS my hand and official seal.
___________________________________
Notary Public
STATE OF ______________ )
) ss:
COUNTY OF ____________ )
On ____________, 20__, before me, _________________________,
personally appeared
______________________________________________________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
WITNESS my hand and official seal.
__________________________________
Notary Public
List of Exhibits
Exhibit "A".............................Description of Otay Property
Exhibit "B".............................Description of Lakes Property
